6 Tips For Avoiding Malpractice When Dealing With Social Media

POSTED ON July 21, 2017

By Gayle O’Connor – This is a true story of a CLE Seminar panelist discussing social media as evidence. Near the end of the session, during the question and answer phase, a woman in the audience raises her hand and states, “So, I wasn’t supposed to tell my client to delete his incriminating Facebook postings?” After a moment of pulling himself together, the panelist let her know about the case of Lester v. Allied Concrete Company out of Virginia which not only cost the attorney $522,000 and his position at a top firm but also his license to practice law.

In another true scenario, I myself was speaking at a CLE on social media authentication. I had a great group, very engaging. After the session, I was networking with the attendees and overheard one lawyer say to another “Geez, I told my client to delete a ton of Facebook posts and won that case. Guess that was wrong, eh?”

These are two real situations where attorneys might have found themselves in some real hot water. The point is that attorneys simply cannot delete evidence (or advise their clients to delete evidence) from social media accounts any more than they can erase tapes of phone calls or shred paper when they are relevant to a case. It is long past time to get yourself familiar with best practices for handling social mediaso you yourself aren’t charged with technical incompetence or even worse, malpractice.

So here are my top tips for working with social media:

Preserve all social media posts just like any other type of evidence when litigation is ongoing or even anticipated. Treat social media just as you would any other evidence.

It is important to ask your client about social media from your very first discussion with him or her. You need to be aware of any and all areas where your client might use social media in their work and communications. And be sure to discuss with them including all of these in their policies and procedures as outlined in any Employee Manual they may have.

Even if you don’t use social media in your personal life and are unfamiliar with all the current terms and standards, it is still critical that you educate yourself as to what it is and how it might affect your case. The number of cases that have had social media components has grown exponentially over the past few years and are only getting more popular. The time to take off the blindfold is now.

While the utility of social media research during jury selection is clear, lawyers accessing social media information during voir dire must be aware of and adhere to relevant ethical considerations. The American Bar Association issued Formal Opinion 466 on April 24, 2014 and discussed the ethical implications of social media research on jurors. The opinion is based on the ABA’s Model Rules of Professional Conduct, which have been adopted by all states but California.

In that opinion, the ABA opinion states that the “mere act of observing” a potential juror’s social media sites is not improper ex parte contact with a juror, similar to how driving down a juror’s street to get a sense of his or her environment is not improper. However, asking a juror for access to his or her social media, such as asking to “friend” them on Facebook, is improper and likened to stopping the car and asking to look inside the juror’s home. Check your local state bar association rules to see if they have addressed juror contact on social media: many have done so.

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added)

28 states have adopted that ethical duty of technical competence in one form or another. Is your state one of them? If so, you need to read that rule.

Every bar association regulates how lawyers can advertise. Social media posts and interactions can put them in violation of these ethics rules. Know what is acceptable in your particular jurisdiction.

Hopefully, these tips will help you navigate the world of social media and perhaps even keep your malpractice premiums low. Social media is here to stay and whether you’re a user or simply an attorney trying to keep up, there are hundreds of YouTube videos that can teach you anything you want to learn or care to know. Of course, any questions or comments are welcome. I promise I’ll help elucidate on anything you don’t understand at this point. ‘Cause guess what, it’s time you do understand!

Gayle O’Connor is a legal technology consultant with 30 years’ experience specializing in legal marketing, particularly social media, blogs, and websites. She is currently working as the Marketing Manager at Social Evidence, a cloud-based application designed to discover, organize, analyze, and authenticate specific social media evidence. Gayle was previously the Marketing Manager at Degan, Blanchard and Nash, a large law firm located in New Orleans. Gayle is also a former trial technician for the federal public defenders, a marketing director for numerous legal software providers and has taught legal research at law schools. Additionally, she has been a featured speaker at American Lawyer Media LegalTech Events, ABA TECHSHOW, Online World, Special Libraries Association, Washington State Paralegal Association, National Business Institute, ABA Litigation Section Meetings, local Bar Associations throughout the U.S., and international organizations such as the Law Society of British Columbia and the New Zealand Law Society. She can be reached at gayle.oconnor@social-evidence.com, www.social-evidence.com or @gaylemoconnor.

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